INNOCENT OKEREKE & ANOR v. NZE INNOCENT ADIELE (2014)

INNOCENT OKEREKE & ANOR v. NZE INNOCENT ADIELE

(2014)LCN/7543(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of November, 2014

CA/PH/421/2008

RATIO

APPEAL: APPEAL AS OF RIGHT; WHEN SHALL AN APPEAL LIE FROM THE DECISIONS OF THE CUSTOMARY COURT OF APPEAL TO THE COURT OF APPEAL AS F RIGHT IN ANY CIVIL PROCEEDINGS

Are the grounds of appeal by the Appellants and the issues distilled from them (and the arguments thereunder) on question(s) of Customary Law, to invoke the jurisdiction of this Court, in view of the Constitutional provisions of Section 245 (1) of the 1999 Constitution and the interpretation of the same by the Apex Court in the case of Pam vs. Gowm (2000) FWLR (Pt. 1) 1. By the said Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended;
“An appeal shall lie from decisions of the Customary court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary court of Appeal with respect to any question of Customary Law and such other matters as may be prescribed by an act of the National Assembly.”

In the various interpretations of that Section of the Constitution by the Apex Court, it is clear that, this Court (Court of Appeal)
“…is barred from entertaining any appeal emanating from the Customary Court of Appeal, except the same rests on question(s) calling for construing of issue of Customary Law, simplicita”
See the case of Okorie and Ors. vs. Chukwu (2014) LPELR – 23744 (CA)  which was predicated on the Supreme Court case of Pam vs. Gwom (2000) FWLR (PT 1) 1; (2000) LPELR 2896 SC.  See also Joseph Ohai vs. Samuel Akpoemonye (1999) 1 NWLR (Pt.588) 521 at 528; where the Supreme Court held:
“for an appeal to lie to the  Court of Appeal from the judgment of the Customary Court of Appeal of a State, therefore, it must relate:
(a) To a question of Customary Law, and/or
(b) To such other matters as may be prescribed by an Act of the National Assembly” Per Wali JSC
Only recently, we held in the case of Iheanacho Ukachukwu & Ors. vs. Innocent Ihejirika & Ors: CA/OW/169/2014, delivered on 14/11/14, in respect of the 2nd limb of the case of Ohai vs. Akpoemonye (supra) (on whether the National Assembly has expanded the jurisdiction of this Court over appeals from the Customary Court of Appeal), as follows:
” … to date, there is no such prescription by any Act of the National Assembly, stipulating any  ‘such other matters’ on which the jurisdiction of this Court (the Court of Appeal) can be invoked to determine appeal from the Customary Court of Appeal, in civil proceedings, other than on the questions of Customary Law.  See the case of Maurice O. chukwu vs. Customary Court of Appeal & ors. (supra); Okorie & Ors vs. Chukwu (supra)” per. ITA GEORGE MBABA J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. INNOCENT OKEREKE
2. BENJAMIN OKEREKE
(For themselves and on behalf of Okereke Family of Umuimo Obokwe, Ngor Okpala LGA of Imo State) Appellant(s)

AND

NZE INNOCENT ADIELE
(For himself and on behalf of Adiele Family excluding the Nweke Adiele Unit) Respondent(s)

ITA GEORGE MBABA J.C.A.(Delivering The Leading Judgment): By a summons, issued on 11/3/92, in Suit NO.CC/NGO/15/92, the Plaintiffs (Respondent in this appeal) claimed against the Defendants (Appellants herein) for declaration of title to land called ‘Okpulo Ogwu’ and also asked for damages for trespass and an injunction. By another summons taken out by the Defendants too (as Plaintiffs), Appellants herein, on 22/9/95, in Suit NO.CC/NGO/51/95, claimed against the Respondent herein for a declaration of title in their favour, and for a mandatory order that the defendants (Respondent herein) accepts the equivalent of a redemption fee of “nnuola asaa” that is N14 and an injunction.

The two cases were consolidated at the Customary Court, with the Plaintiffs in the first suit remaining as Plaintiffs in the consolidated suit and the defendants in that suit (Plaintiffs in the 2nd suit) remaining as Defendants. At the conclusion of the trial, the trial Court gave judgment to the Plaintiff in the consolidated suit on 13/9/2004.

Dissatisfied, the Defendants (Appellants herein) appealed to the Imo State Customary Court of Appeal, as per Notice of appeal filed on 14/10/2004. The appeal NO.CCA/OW/39/05 was determined on 12/12/06, and the Customary Court of Appeal dismissed the Appeal.

This appeal is against that decision of the Customary Court of Appeal, delivered by Hon. Justice J Obasi Iwuagwu, Hon. Justice P.I. Okpara (presiding) and Hon. Justice C.U. Anwukah (who read the lead judgment).

Appellants’ notice and grounds of appeal are found on pages 242 to 246 of the Records of Appeal and were filed on 8/3/2007, disclosing 4 grounds of Appeal. Appellants filed their Brief of arguments on 31/10/08, and distilled 4 issues for determination, as follows:
(1) Whether the Court below was right in holding that the Respondent, who was the Plaintiff at the trial court, proved the root of the title having regard to the traditional evidence of the parties on record (Ground 1.)
(2) Whether the Court below was right when it held that the Respondent proved the identity of the land in dispute (Ground 2).
(3) Whether the Court below was right in holding that the Appellants are estopped from claiming the land because of 1957 Oath, having regard to the evidence on record. (Ground 3)
(4) Whether the Court below was right when it held that the Appellants did not prove pledge of the land in dispute to the Respondent.” Ground 4.

The Respondent filed his Brief on 4/6/13 and the same was deemed duly filed on 22/10/13. In the Respondent’s brief, he raised a preliminary objection against grounds 1, 2, 3 and 4 of the Appeal on pages 193 to 196 of the Records! (The Notice of appeal and grounds are actually, on pages 243 to 246 of the Records of Appeal). The Respondent’s Counsel, however, applied to withdraw the preliminary objection at the time of arguing the appeal; he also adopted the four issues distilled by the Appellants for determination.

I shall not consider the said “Preliminary objection” just on application of the Respondent, but also on the Court’s motion, pursuant to Order6 Rule 3 of the Court of Appeal Rules 2011 which permits us to strike out a ground of appeal that is defective. I shall not also consider it as “preliminary objection”, since they are not directed at the competence of the Appeal but at the grounds of appeal and the issues therefrom. A preliminary objection, properly so called, is an attack at the appeal, as a whole, spotting why it should not be entertained, as a result of incompetence. I believe that is the purport of Order 10 Rule 1 of the Court of Appeal Rules, 2011, which says:
” A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time’. (Emphasis mine).

Order 6 Rule 3 of the Court of Appeal Rules, 2011, however, provides against defective and incompetent ground of appeal, that:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted…”

The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a ‘preliminary objection’ but a motion, notifying the Appellant of the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course, such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect. See the case of General Electric Co. Vs Harry Akande (2011)4 NSCQR 611, where the Supreme Court said:
“… where, as in this appeal, the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a Motion on Notice since the preliminary objection, if successful, would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal…”
See also Adejumo Vs Olawiye (2014)12 NWLR (pt.1421)252 at 265

Though, the Respondent, for undisclosed reason, had applied to withdraw the preliminary objection, the same shall still be considered as this Court finds it relevant to determine whether we can hear this appeal. We have held several times that failure of Respondent to properly raise a preliminary objection does not stop the Court from considering it if there is any apparent defect on the face of the Notice and grounds of appeal See Kwazo vs. RPC & Ors (2013) LPELR 23737; Nwana vs. NBN PLC (2013) LPELR 21823 CA; Garba vs. Ummuam (2013) 12 WRN 16.

I shall, therefore, adopt the Respondent’s argument on the objection and the Appellants’ reply, to resolve the issue whether the grounds of appeal have disclosed any valid appeal before us, in view of Section 245 (1) of the 1999 Constitution.

Where, as in this appeal, there is preliminary objection against all the grounds of the Appeal (and the issues there from), it is as good as an objection to the hearing of the entire appeal. This is because, if the entire grounds of the appeal are, successfully, assailed, the appeal fails. But if one (or more) of the attacked grounds of appeal survive the attack, the appeal would be heard on the surviving ground(s). I shall, therefore, consider the Preliminary Objection as simply an objection to the whole grounds of appeal, or Objection to the Appeal.

The Respondent’s objection to ground 1 (and issue 1) was that it complained about the following:
(1) Misapprehension of evidence relating to root of title (paragraph 4.02 of the Appellants’ brief)
(2) The Respondent’s evidence on record regarding root of title being inconsistent and incapable of sustaining judgment of the Court (paragraph 4.06 …)
(3) The Court below ignored the absurdities of the traditional evidence of PW1 and PW3… (paragraph 4.15)
(4) …throughout the judgment, there was no reference to and/or evaluation, of evidence before relating same to the root of title and the Court misread the Records before it and wrongly dismissed all arguments relating to root of title (paragraph 4.20 of the Appellants brief)
(5) In paragraph 4.25, Appellant challenged the probative value of Exhibit C, that is, Appellant’s statement of claim in their discontinued case at Owerri High Court.
(6) At paragraph 4.32 – Appellants complained and submitted that the inconsistencies that dotted the traditional history of the Plaintiff were irreconcilable and capable of more than one meaning …

Counsel submitted that the above complaints rather touched on proof of title to land, ascription of probative value, evaluation of evidence and resolution of inconsistencies in evidence of witnesses, which are matters of Evidence Act and Common Law; that they are not matters of question of Customary Law, to vest jurisdiction on this court to hear the appeal. Thus, Counsel said, the ground one and the issue distilled therefrom are incompetent.

On ground 2 (and the issue therefrom), Counsel submitted the complaints therein and submissions focused, entirely on the Common Law requirements on proof/identity of land in dispute, which do not, by any stretch of imagination, raise any issue of Customary Law. He referred us to pages 17 to 24 of the brief.

On ground 3 (and the issue 3 therefrom), Counsel said the same relate to the Common Law doctrines of estoppels and stare decises. He referred us to pages 24 – 29 of Appellants’ brief, where the arguments portray disappointment with the lower Court for not considering the authorities cited to support the alleged estoppels etc.

On ground 4 and the issue therefrom, Counsel said the same related to pledge of the land in dispute and the reliance of the Lower Court on the Statement of Claim, previously filed in the High Court in respect of the same land, to refuse the claim of pledge; He said that the arguments on the issue is a quarrel with the Lower Court’s evaluation of the evidence and what it ascribed to the findings of the trial court etc.

Counsel submitted that a careful look at all the grounds, the issues and the arguments of the Appellants on them, would show that they were not grounds of Customary Law, even though appellants’ Counsel had described them as such. He relied on the case of Salaudeen vs. Oladele (2002) FWLR (Pt.135) 741 at 743, to say that
“In determining whether a ground of appeal is competent, the Court is not influenced by how the ground is christened by the Appellant but looks at what the ground complains about”

Counsel therefore relied on Section 245 (1) of the 1999 Constitution, to the effect that, an appeal can only lie from the decision of a Customary Court of Appeal to the Court of Appeal with respect to questions of Customary law only, or such other matters as may be prescribed by an Act of the National Assembly. He also relied on the case of Joseph Ohai vs. Samuel Akpoemonye (1999) 65 LRCN 77 at 79; Dang Pam vs. Sale Gwom (2000) 74 LRCN 22 at 24 (2000) FWLR (Pt. 1) 1

Appellants had filed a Reply brief, wherein they also contested the Respondent’s objection on pages 5 to 7 (paragraphs 3.00 to 3.08) thereof. Appellants Counsel submitted that the Respondent’s uncommon grouse was that Appellants’ Brief of argument mentioned ‘evidence in arguing issue 1 on root of title, “estoppels” while arguing issue 2 on identity of the land, “estoppels and stare decisis” while arguing issue 3 on oath taking and “challenging pledge” and reference to “Exhibit C’ while arguing issue 4; he said that the Respondent was, therefore, referring to sentences in the course of Appellants’ arguments of the respective issues in the brief; thus, that the Respondent was attacking sentences, not the grounds of appeal, thereby implying that the sentences do not relate to question of Customary Law.
He argued that such reasoning was very strange and absurd. He further argued that the Respondent cited no authority to support his submission and that the one cited Salaudeen vs. Olalele (2002) FWLR (Pt.135) 741 at 743 was, actually, in Appellants’ favour, as it requires the Court, in determining whether a ground of appeal is competent, not to be influenced by how the ground is christened by Counsel for the Appellant, but should look at what the ground complains of.

Counsel submitted that Appellants’ ground 1 complains of root of title; ground 2 complains of identity of the land; that ground 3 is on oath taking, while ground 4 complains of pledge; he said that all these border on Customary Law; that in arguing them, proof and evidence of native law and custom must be mentioned as many times as it is necessary or relevant. He wondered whether the Respondent wanted the appeal to be argued in ‘Igbo’ to avoid mentioning legal terms that even explain customary Law situation!

RESOLUTION OF OBJECTION
I think the last remarks by the learned Counsel for the appellant, Ngozi Olehi Esq, rather tried to make fun of a serious legal problem/challenge she had a duty to resolve. Are the grounds of appeal by the Appellants and the issues distilled from them (and the arguments thereunder) on question(s) of Customary Law, to invoke the jurisdiction of this Court, in view of the Constitutional provisions of Section 245 (1) of the 1999 Constitution and the interpretation of the same by the Apex Court in the case of Pam vs. Gowm (2000) FWLR (Pt. 1) 1?

By the said Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended;
“An appeal shall lie from decisions of the Customary court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary court of Appeal with respect to any question of Customary Law and such other matters as may be prescribed by an act of the National Assembly.”

Did the Appellants’ grounds of Appeal (and the issues distilled therefrom) touch on the question(s) of Customary Law?
I have earlier reproduced the 4 issues, distilled for determination by the Appellants from the four grounds of appeal, which were as follows;
“GROUNDS OF APPEAL
(1)  The Court below erred in Customary Law when it held that the Respondent has proved his root of title to the land in dispute
Particulars of Error
(a) The Respondent traced his root of title to one Ohale whom he clearly stated has no relationship with the Appellants.
(b) The lower Court/mistook this Ohale to the particular Ohale referred by the Appellants who was accompanied by Okereke (Appellants’ father) to pledge the land in dispute to Adiele (grandfather of the Respondent)
(c) Flowing from this misconception, the court below held that since it is not in dispute that Ohale gave out the land, “the argument of who deforested the land or not is immaterial and all the argument canvassed by both Counsel on it goes to no issue.”
(d) To establish a claim of title under Customary Law, the party seeking a declaration, must prove his root of title clearly and sufficiently.
(e) The decision of the Court below did not flow from evidence of the Respondent who as Plaintiff in the Court of first instance with his relation testified as PW1 and PW3 respectively stated that two different persons deforested the land.
(f) Both PW1 (the Respondent hereto) and his relation who testified as PW3 additionally mentioned that one Ohale of Umuabali owned the land but could not prove Ohale’s title.
(g) The Appellants’ root of title in the evidence is intact as the Respondent did nothing to controvert same.
2.  The Court below erred in Customary Law when it heard that Respondent properly identified the land in dispute when he identified his boundary neighbours.
PARTICULARS OF ERROR
(a) The only description of the land in dispute by the Respondent throughout the whole trial is where he stated his boundary neighbours.
(b) There is nowhere in the record where the Respondent gave any description of Appellants’ Exhibit B which the court of first instance found to be obviously larger than the land described by Respondent.
(c) Trial court’s judgment, now upheld by the lower court, awarded the land in Exhibit B to
the Respondent which the said Respondent did not identify
(d) Respondent’s description of the land in dispute now wrongly endorsed by the lower court falls short of Supreme Court standard which states that a proper description of the land will show its area, boundaries, location and features in such a manner that a survey can from the description draw up or produce an accurate plan of the land.
(e) It is therefore wrong in law, as held by the court below, that there was proper description because there is no dispute as to boundaries and that it sufficed that the parties know the land
(f) The lower court found as of a truth that the description by the Respondent does not match exactly with that of Appellants in Exhibit B but it held otherwise as if the purpose of locus in quo is to substitute the eye for the ear instead of complementing the auditory with the visual
3. The Court below erred in Customary Law when it held that the 1957 oath by Respondent’s family outside the land in dispute sufficed to entitle them to ownership in the absence of expert evidence and in clear disregard of judicial precaution on oath taking.
PARTICULARS OF ERROR
(a) It is not in dispute that the 1957 oath was taking at Chokoneze Mbaise – a different local government area from that of the parties hereto.
(b) While the Appellants called two expert witnesses to testify the oath in respect of ownership of land MUST take place on the land in dispute, the Respondents never called any witness to show that oath in respect of ownership can take place anywhere.
(c) The inability of Respondent to discharge this onus (as Plaintiff in the trial court ) notwithstanding, the lower court erroneously held that “there is no distinction made as to place of oath taking vis-‘E0-vis boundary dispute and or ownership of land.
(d) The Supreme Court position which bind the lower court prescribe specific precautions before lending credibility to traditional oaths and this was not heeded to the lower court.
(e) The lower court rather said that the Appellants (who were defendants and who at no time relied on the oath at Chokoneze as one of ownership) did not call any witness to confirm that the 1957 oath taking was agreed to be taken at Ala Ogbaga Juju shrine in Chokoneze Ezinihitte Mbaise.  This is a clear case of misplacement of burden of proof which as in this case, has resulted to miscarriage of justice.
4. The court below erred in Customary law when it held that the Appellants did not proved pledge of the land in dispute.
PARTICULARS OF ERROR
(a) Throughout the evidence of the Respondent and his two other witnesses, he never set out to prove outright gift of the land by the family of the Appellants to his own family
(b) The Respondent never led any evidence neither did he do any significant cross-examination of Appellants’ evidence on pledge wherefrom his denial of pledge could be based
(c) Indeed PW1 in his evidence-in-chief on 5/8/2003 as plaintiff at the trial court stated clearly that there is no relationship between Ohale (through whom they alleged they got the land) and the Defendants.
(d) The decision of the lower court that permanent boundary marks would not have made in respect of a pledged land which is redeemable anytime is misconceived because there is no evidence on record to show that in the locality la separate boundary mark is used when part of a larger parcel of land is pledged.
(e) In rejecting the Appellants’ proof of pledge, the lower court used the purported age of the pledge transaction
in a statement of claim to overthrow the evidence of the Appellants on oath in this present suit contrary to Supreme Court position that facts in a pleading not supported by evidence on oath goes to no issue.
(f) The Respondent never led any evidence to show there was no time ‘ola’ was used as currency and accordingly, there was no strong attack on ‘when’ pledge took place.
(g) The Appellants proved all the ingredients of pledge and the Respondents did not do anything whatsoever to dislodge the proof.”
The Respondent’s contention in the preliminary objection is that, though Appellants alleged that the grounds of Appeal relate to questions of Customary Law and also described them as such, the arguments, as per the Appellants’ brief, do not reveal any question of customary law, as issue one quarrelled about evaluation of evidence; issue 2 on proof/identity of the land in dispute; Issue 3 on Common Law doctrine of estoppel and issue 4 on pledge and evaluation of evidence. He argued that these areas of dispute are outside the confines of Customary Law, being issues of Evidence Law and Common Law doctrines and procedures.
Though Appellants’ Counsel, stoutly, opposed the Respondent’s objection, saying the grounds of Appeal are those of customary law, he, however, appeared to have, admitted in paragraphs 3,01 and 3.02 of the Appellants Reply brief, filed on 5/11/13, when he argued that:
” 3.01: The Respondents’ uncommon, grouse is that the Appellants’ Brief mentions ‘evidence’ in arguing issue 1 on root of title, “estoppels” while arguing issue 2 on identity of the Land, estoppel and stare decisis” while arguing issue 3 on oath taking and ‘challenging pledge’ and reference to ‘Exhibit C while arguing issue 4 on pledge.
“3.02: …The Respondent was referring to sentences in the course of Appellants’ arguments of the respective issues in the brief… the Respondent was attacking sentences and not grounds…”
Are the arguments of the Appellants referred by the Respondent’s Counsel in pages 6 to 32 (in paragraphs 4.02, 4.06,4.15, 4.20, 4.25, 4.32, 5.03, 5.08, 5.17, 6.04, 6.09, 6.10, 6.11, 7.07, 7.08, 7.10 and 7.13), mere mentioning of or sentences on:-
(a) ‘evidence’ in arguing issue  one on root of title?
(b) ‘estoppel’ while arguing issue 2 on identity of land?
(c) “estoppel” and “stare decisis” while arguing issue 3
(d) on oath taking? and
(e) “challenging pledge” and reference to “Exhibit C” while arguing issue 4 on pledge?
I have my sincere doubts. I have earlier summarised the arguments of the Respondent’s Counsel against the four grounds of appeal and the issues therefrom, to the effect that Appellants’ arguments on the grounds/issues are all complaints and submissions outside questions of customary law, but rather questions touching on evaluation of evidence, Common Law requirements on proof/identity of land in dispute, or Common law doctrines of estoppel and stare decisis, or challenging the findings of the trial Court on the Exhibit C.
Appellants issue 1 was:
Whether the Court below was right in holding that the Respondent who was the Plaintiff at the trial Court, proved the root of title, having regard to the traditional evidence of the parties on record.
That, obviously, is an issue on evaluation of evidence by the trial Court to arrive at its conclusion.
Appellants’ opening argument on the issue (was that:
“… the Court below betrayed its misapprehension of the evidence relating to the root of title. Indeed the name ‘Ohale’ featured severally in the traditional histories of both parties. But it is also clear from the Records that the “Ohale” refered to by the PW1 has no common ancestory with the defendants who are now the Appellants…”
That cannot be a ground or issue on customary law, but one questioning the evaluation of evidence.
In the case of Iheanachor Ukachukwu & Ors. Vs Innocent Ihejirika (supra), the Appellant faced similar problems as in this appeal, predicating the matter on evaluation of evidence, we held:
“… I find it difficult to locate the complaint of the Appellant, which, in the main, is a quarrel with the evaluation of evidence, within the rights of Appellant to appeal against the decision of the customary Court of Appeal, under section 245(1) of the 1999 Constitution, which confines right of appeal to question(s) of Customary Law. Issues and questions relating to evaluation of evidence and the restraint of Appellate Court from tampering with the findings of facts by the trial Court (except in circumstances of averting error that can lead to miscarriage of justice), appear to belong to the realms of common law principles and procedure of trial of courts, outside the contemplation or purview of the Customary Law…”
I think, Appellants’ issues 2, 3 and 4, which, infact, were complaints about identity of the land in dispute, complaint of invocation of the rule of estoppel against the Appellant, and complaint that Appellants did not prove pledge of the land (also issues of evaluation of evidence), respectively, cannot be considered differently, in the circumstances. None of them raised any question of customary law.
The ground 3 of Appellants grounds of appeal which had raised a question of oath taking – “that the Court below erred in Customary law when it held that the 1957 Oath by the Respondent’s family outside the land in dispute sufficed to entitle them to ownership in the absence of expert evidence and in clear disregard of judicial precaution on Oath taking” was, infact, spiced with the flavour of a question of Customary Law, when it raised issue of oath taking in the land in dispute, not outside the land. But  the issue distilled from that ground took it away, completely, from the confines of a question of oath taking under Customary law, when it queried:
“Whether the Court below was right in holding that the Appellants are estopped from claiming the land because of 1957 oath, having regard to the evidence on record, Grounds 3”
Of course, in his argument of the issue Learned Counsel for the Appellants had submitted in paragraph 6.10 and 6.11 of the Brief, thus;
“… It is regrettable that the Court below threw caution to the winds in holding that the 1957 oath at the instant case created estoppels against the Appellants … Obviously, his lordship neither understood the niceties of the authority he used to support the above pronouncement.
Judicial authorities outline the recognised procedure for oath-taking in respect of ownership of land; the parties must agree to resort to arbitration under nature (sic) law and custom, this must be concluded with a decision from the arbitral panel, it must assess and/or evaluate the evidence before it, take a decision that anyone who disagrees must take an oath.  It is a person who witnessed and took part in this process that can be a competent witness.  The Court below failed woefully in noting that the Respondent never fulfilled any of these conditions as clearly borne out of the Records,”
With the above, it is clear that Appellants were not concerned about any question of Customary Law relating to oath taking, but were rather disturbed about the application of the Principles of estoppels in the circumstances.  Of course, the Principles of estoppels, is strange to the concept and practice of Customary Law.
I therefore agree with the Learned Counsel for the Respondent that the entire appeal, as per the grounds and issues, cannot qualify as competent appeal before us, in view of the Section 245 (1) of the Constitution and the interpretations of this Court and the Apex Court on the section.
I hereby repeat the observation I made in the case of Ukachukwu & ors. vs. Ihejirika & ors: CA/OW/169/2014, delivered on 14/11/14 that:
“…until the scope of issues and matters capable of being appealed against from the Customary Court of Appeal to the Court of Appeal, is expanded by an Act of the National Assembly, pursuant to section 245(1) of the 1999 Constitution, beyond the present restrictive interpretation by the Apex Court, no complaint of legal infraction can be entertained as appeals from Customary Court of Appeal by this Court in Civil causes and matters, except the same is a complaint on a question of Customary Law, that is, one for construing of what constitutes Customary Law and application of the same. See again the case of Okorie & Ors Vs Chukwu (2014) LPELR – 23744 (CA):
“It appears obvious, as per the decided authorities from the Supreme Court, that the position of the Apex Court on issues of appeals from the Customary Court of Appeal to the Court of Appeal is that, this Court is barred from entertaining any appeal emanating from the Customary Court of Appeal, except the same rests on question(s) calling for the construing of issue of Customary Law, simplicita… I believe this position of the Constitution was intentional, probably to make the Customary Court of Appeal a final Court of litigation at that level.” See also Chukwu Vs Customary Court of Appeal & Ors: CA/PH/1009/2008, delivered by this Court on 21/8/2014; Pam vs Gwom (2000) FWLR (pt. 1) Ohari Vs Akpoemonye (1999) 1 Sc 96.
I therefore strike out the four grounds of appeal and the issues therefrom, for being in-competent, pursuant to Order 6 Rule 3 of this Courts Rules 2011.  The appeal is, accordingly, struck out for incompetence, pursuant to Order 6 Rule 6 of the Court of Appeal Rules, 2011.
Parties shall bear their respective Costs.

PETER OLABISI IGE, J.C.A.: I have the benefit of reading in advance the judgment just read by my Learned Brother Mbaba, JCA.
I agree with the conclusions reached therein.

FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my Learned Brother, ITA G. MBABA, JCA in this Appeal. I agree with his reasoning and conclusions that the Appeal deserves to fail and it is accordingly struck out due to reasons of the filing of an incompetent Notice and Grounds of Appeal. This Court is empowered under Order 6 Rule 6 either on its own motion or upon an Application to that effect to strike out any Notice and Grounds of Appeal, which is incompetent or discloses no reasonable Grounds of Appeal among a host of other reasons.
Where an Appeal is therefore filed against the decision of a Customary Court of Appeal, this automatically raises a jurisdictional issue under Section 245(1) of the 1999 Constitution (as Amended). The two Grounds of Appeal herein, same having not raised issues of Customary Law as envisaged by Section 245(1), are accordingly struck out and so is the Notice of Appeal.
There shall be no orders to costs.

Appearances

Ngozi Olehi Esq. with him Obinna NwachukwuFor Appellant

AND

C. C. Azara Esq with him N. J. Odinukaeze Esq.For Respondent